News broke this week of a controversial deal in Colorado around hydraulic fracturing. In exchange for the withdrawal of four ballot propositions (two promoting oil and gas development and two regulating it), the state agreed to convene a blue-ribbon panel of stakeholders to discuss how the state should handle oil and gas development. The panel will make policy recommendations to the state legislature and Governor Hickenlooper early next year. What does this mean for fracking in Colorado?

A deal in Colorado this week gives the state an opportunity ensure its hydraulic fracturing policies are better informed by science. Photo: Shutterstock

The deal will have implications for whether communities have local control over development decisions, how soon companies can develop new sites, and what kinds of state-level regulations might emerge from the process.

But significantly, the deal creates an opportunity for the state to enact hydraulic fracturing policies that are better informed by science. Given the pace at which hydraulic fracturing has expanded across the nation, many places haven’t taken the time to consider the science before moving forward with development. This new deal gives the Centennial State the opportunity.

How Colorado can use science to improve fracking policy

Given the limited federal role in regulating hydraulic fracturing, states are left to decide if and how development should happen. Colorado has several laws in place—better than many other states; however, there is room for improvement, as current laws certainly haven’t addressed communities’ concerns over oil and gas development.

State laws should require baseline testing of air and water quality, as well as ongoing monitoring of air and water during and after development has occurred. The resulting data and information should be publicly available and accessible to communities in a timely manner.

Colorado requires some testing of groundwater quality before and after drilling occurs. But there are several things Colorado can be doing better to protect and inform its citizens. To get a sense of this, let’s look at what some other states are doing in the area of water quality monitoring.

More than half of all states with unconventional oil and gas development inside their borders have no laws requiring pre-drilling baseline testing of water quality near drilling sites or continued monitoring after drilling begins. Of states that do have such laws, testing programs can be voluntary rather than mandatory, and most focus on either baseline testing or continued monitoring of water quality, but not both. Problematically, states do not require testing for all of the same substances, or reporting in particular units. These intra-state differences impede the information from being easily comparable across states.

Instead of (or in addition to) requiring testing, some states, including Pennsylvania and West Virginia, establish a legal presumption that a company is responsible for contamination of groundwater that occurs within a specified radius of their well. The company can prove otherwise by showing a baseline test that demonstrates the contamination existed before drilling. But in the absence of such data, the company is considered responsible. These laws create an incentive for companies to carry out baseline tests, and they protect landowners in cases where companies do not.

Measuring the air: a need for science

Most states don’t require air quality monitoring in communities near oil and gas development sites despite some indication of air quality impacts in fence line communities Photo: Flickr/Sustainable Economies Law Center

On the air quality side, Colorado passed a law this year to cut air pollution emissions—making the state the first in the nation to address global warming emissions from hydraulic fracturing. Designed to mitigate emissions of methane and volatile organic compounds (VOCs), the law requires operators to improve their leakage-prevention measures and install devices that would capture substantially more of these emissions. Is this enough?

Interestingly, most states don’t have any laws requiring air quality monitoring. Colorado’s new law will require detection measures at the drilling site but not beyond the fence line. Despite some evidence of air pollution impacts to communities near oil and gas development, just two states have implemented any kind of program for monitoring air quality near drilling sites. Texas runs an air quality monitoring program, and Pennsylvania has conducted some air quality monitoring but not in a systematic and ongoing way.

State laws also vary in how accessible air and water quality data is to the public. Colorado could improve here and ensure that any air and water quality data collected is reported to the public in a comprehensive, timely, accessible way.

Colorado can enhance their regulation of hydraulic fracturing to better protect its citizens from real and potential impacts to air, water, and public health and to better provide access to information to its citizens, scientists, and decision makers.

A Blue-ribbon panel informed by science?

Few details have been released about who will comprise the blue-ribbon panel that will make recommendations for hydraulic fracturing policy to the state legislature. It is not yet known how the panel will operate or what kind of policy measures they will consider. As the details are released, I hope to see a panel informed by the science.

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Richard Solomon

This confirms just how complicated and impactful the process of fracking is on the water, air and thus people’s well being.

Colorado deserves kudos for having taken as many steps as it has to try to get a handle on this. And for setting up this ‘blue ribbon panel’ to explore the various options further. Obviously, those appointed to it will be crucial. Hopefully, it will not degenerate into a raucous struggle for dominance by any one side of the arguments involved.

It could prove to be a valuable lesson for other states where fracking is going on: Pennsylvania, NY, or here in Calif where I live. The significance cannot be underestimated!